The law firm of Bathgate Wegener & Wolf, P.C. (“BWW”) has represented the Borough of Carteret since 2013. During that time senior partner William Wolf represented Carteret in relation to the development of its waterfront for various public purposes including a 190 boat marina and a ferry terminal for service from Carteret to New York City. This ferry service will not just benefit the residents of Carteret but the ferry from Carteret to New York City will expand commuting options to New York City on a regional basis consisting of Middlesex County, Union County, Somerset County, Monmouth County and Ocean County.

With the New Jersey Turnpike at or over-capacity, the overcrowded NJ Transit Bus Service struggling to accommodate commuters, and the absence of direct rail service to or from Carteret, the ferry will provide a convenient and reliable transportation alternative to New York City. The Carteret Ferry Terminal is likely to accelerate the transformation of an area of environmental degradation into a catalyst for economic development while reducing congestion on the New Jersey Turnpike and roads leading into the Holland and Lincoln Tunnels. The estimated travel time by ferry between Carteret and New York City is fifty (50) minutes.

The ferry service from Carteret to New York City will be a component of a truly intermodal transportation hub. Carteret will provide municipal jitney service to the ferry terminal. It is anticipated that the Carteret ferry terminal will become one of the stops on a bus route currently operated by New Jersey Transit. The Carteret ferry terminal is only several minutes away from Exit 12 on the New Jersey Turnpike; thus, making the ferry a cost-effective final leg for motorists connecting to New York City from locations in Middlesex County, Union County, Somerset County, Monmouth County and Ocean County.

Recently, Carteret announced two major milestones in the plan to provide ferry service between Carteret and New York City. First, Carteret passed a major hurdle in the construction of the Carteret Ferry Terminal. The New Jersey Department of Transportation notified the Borough that the Interagency Review Committee (IRC) including the Federal Highway Administration (FHWA) recommended approval for the Borough to proceed to the Preliminary Engineering phase of the Carteret Ferry Terminal project. This determination brings the Borough one step closer to receiving $2,213,833 in federal construction funds. Second, The Federal Transit Administration awarded $6 million to New Jersey Transit to purchase a 299-seat passenger ferry that it, in turn, will lease to Carteret for $1 per year, bringing the total federal funding for the project to over $10 million. The ferry boat will be built to Carteret’s specifications. Additional boats will be provided by the operator who will be selected through public bidding.

If you have any questions regarding the development of the Carteret waterfronts or ferry service between Carteret and New York City, please contact William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com.

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years. Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

By Brian W. McAlindin | bmcalindin@bathweg.com​ Mark Twain once said, “The more I learn about people, the more I like my dog”. No doubt dogs are among the most loyal pets and friends a dog owner can ever have. With dog ownership, however, comes responsibility. Knowing the law and checking your homeowner’s insurance policy can not only help an owner keep that dog, but also ensure the owner remains best friends with the dog and with neighbors. Brian W. McAlindin, Esq. recently obtained a $225,000 settlement in favor of a 10 year old boy viciously attacked by a Pit Bull. The animal was temporarily housed by the boy’s parents for the owner while a suitable new owner was being sought. The boy was home with his 6 year-old sister and their babysitter when the Pit Bull attacked the family dog. As the victim attempted to separate the dogs, the Pit Bull attacked, clamping on the boy’s buttocks. He was able to free himself from the Pit Bull’s grip, no easy task, and hid his head and neck in the cushions of a nearby couch. The Pit Bull pursued the boy, biting his back, upper arm, and shoulder to the bone resulting in serious and permanent musculature injury, loss of range of motion, permanent pain and suffering, disfiguring scarring, and emotional distress. Luckily, upon hearing screams of the boy and other children who witnessed the attack, a neighbor ran into the house, grabbed a broom, and beat the Pit Bull until it released the boy’s shoulder. The boy was hospitalized for ten days, suffered an infection, underwent reconstructive surgery, and fortunately, made a good recovery. To this day, however, he shudders when he hears the bark of a dog. Stories such as this are all too common. Regrettably, the consequences are often far worse. DogsBite.org reports that there were 37 fatalities from dog attacks in the US last year, nearly 75% by Pit Bulls. From 2005-2017, 433 Americans were killed by dog attacks and two thirds were by Pit Bulls. Pit Bulls and Rottweilers accounted for more than three-quarters of the deaths from dog attacks during that period. It is no wonder that several homeowner’s insurance companies have breed exclusions for Pit Bulls and Rottweilers. If you own that breed, it is a good idea to review your insurance policy. If your breed is excluded from coverage under the policy, contact your insurance broker to see if you can pay an additional premium for an endorsement overriding the breed exclusion. DogsBite.org and similar organizations warn against bringing Pit Bulls and Rottweilers owned by others into the household, especially if you own another dog or have small children. The risks of tragedy are just too great. The New Jersey Legislature has imposed strict liability upon dog owners for dog bites. N.J.S.A. 4:19-16 provides:

The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.

The old rule of “one free dog bite” or any requirement of knowledge of a dog’s vicious propensities is a thing of the past. In addition to civil liability, the owner of a dog that attacks faces potential NJ State criminal sanctions and municipal criminal sanctions—NJ law and many local ordinances make an owner subject to criminal prosecution for dog attacks. State law even provides that if a dog kills another dog, bites a human, or is otherwise determined to be “vicious” by a preponderance of the evidence, the court shall order that the dog be destroyed in the most humane way possible. If you or a loved one has suffered a dog attack, feel free to contact Brian W. McAlindin, Esq., for a free consultation. If you own a dog, remember to check your homeowner’s or tenant’s insurance policy, consider dog obedience school, remember to leash your pet, and make sure your yard has sufficient fencing to secure your animal. A dog may be man’s best friend, but a responsible owner can be a dog’s and a neighbor’s even better friend.

So you are going to buy a townhouse or condominium that is in a “common interest community.” Don’t worry, you are not alone. According to the Community Associations Institute, 1 in 5 Americans live in common interest communities.

Your rights and duties as a condominium or townhouse owner are controlled by a homeowner’s association (“HOA”). HOAs often receive negative press, usually because some overzealous property management company prevents a resident from putting up an American flag or fines the parents of a child for playing on a lawn dedicated to “open space.” But negative press does not reflect how most people feel about living in condominiums and townhouses.

A 2014 study found that 90% of people who live in this style of housing and belong to an HOA have a positive or neutral opinion about their housing and only 10% have a negative opinion. It is anticipated that more and more people will choose to live in condominium and townhouse complexes.

This article talks about the basics of these communities and the HOAs that govern them.

I. What is a Common Interest Community? A common interest community is a planned residential development that is comprised of townhouses, condominiums, cooperatives, or any other residential building. The residences are individually owned and the homeowner is required to insure and take care of the residential unit. A common interest community is also comprised of common elements like roads, open space, and recreational facilities such as pools, lakes, gyms, and clubhouses. A common interest community is governed by a homeowner’s association.

II. What Is a Homeowner’s Association?A homeowner’s association often abbreviated “HOA” is a private organization that is founded by the developer of the common interest community to manage the community of townhouses, condominiums, or cooperatives. Eventually, the developer transfers control of the HOA to the residents of the common interest community who then elect a Board of Trustees to lead the HOA and manage the community.

III. How Is the Homeowner’s Association Governed?Homeowner’s associations are governed by a Board of Trustees. The Board is elected by the owners of the residential units in the common interest community. The Board is responsible for creating the budget, assessing dues and special assessments, maintaining the common elements, and enforcing the rules and regulations of the homeowner’s association. The rules and regulations of the common interest community are set forth in the Master Deed, By-laws, and Rules and Regulations.

IV. What Are the Master Deed, By-Laws, and Rules and Regulations? The Master Deed, By-laws, and Rules and Regulations are the documents that control how the homeowner’s association operates and what conduct is permitted in the common interest community. All purchasers of condominiums and townhomes will be provided with these documents. The documents lay out what property constitutes the common elements and how the common elements are to be used. The documents also define the powers of the Board of Trustees, how the Trustees are elected, and how disputes between residents and the homeowner’s association are resolved. Perhaps most importantly, these documents set forth the rules and regulations that the homeowners must follow. The rules and regulations address, among other things, the use of recreational facilities, planting of trees and shrubs, the number and type of pets allowed in the unit, where a resident may park a car, and how much in dues and special assessments a resident is required to pay. Violations of the rules and regulations can result in discipline to be imposed by the homeowner’s association. That discipline can include fines and suspension of privileges to use recreational facilities.

ConclusionCommon interest communities like condominium and townhouse complexes appeal to a growing number of people. By agreeing to abide by the rules and regulations of an HOA, owners give up some of the freedoms that owners of single family houses enjoy. Friction sometimes results between residents and the homeowner’s association as a result. That friction is best avoided when the homeowner’s association acts consistently and according to clearly articulated policies and rules and regulations contained in the governing documents of the common interest community.

If you have any questions related to ownership in a common interest community and the respective rights and duties of owners and the homeowner’s association, please contact Michael M. DiCicco at Bathgate, Wegener & Wolf.

With Governor-elect Phil Murphy poised to take the helm as New Jersey’s next Governor, recreational marijuana supporters are beginning to feel giddy. A major platform of Mr. Murphy’s campaign for Governor was to put an end to the prohibition against recreational marijuana in the State of New Jersey. Some say the rationale for doing so is motivated by the estimated $300 million in tax revenue from marijuana sales. While recognizing the benefit of a new revenue stream from recreational marijuana sales, which may fund education programs and public workers’ pension, Mr. Murphy points to criminal justice reform as his primary reason for legalization. For supporters, legalizing marijuana is a win-win no matter the primary reason.

State Senate President Stephen Sweeney, D-Gloucester, controls which bills the Senate will debate and vote on.He has stated that his goal is to pass recreational marijuana legislation within the first 100 days of the Murphy administration. State Senator Nicholas Scutari, D-Union, the sponsor of the Recreational Marijuana Bill (S3195), which has been undergoing revisions since he introduced it on May 18, 2017, has pronounced it is full steam ahead for the legalization of recreational marijuana.​Now that Governor Christie is on his way out of Trenton and will no longer pose as an impassable obstacle to recreational marijuana legislation, it is expected that hearings on the pending bill will be scheduled in short order.Mr. Scutari has stated that he would like to try to develop language that would promote marijuana entrepreneurship among minority communities, who Mr. Murphy aptly recognized have been disproportionately affected by marijuana-related arrests and convictions.As initially introduced, (S3195) will do the following:

Legalize individual possession for those over the age of 21 of up to one ounce of marijuana; 16 ounces of products infused with the drug in solid form; 72 ounces in liquid form and seven grams of marijuana concentrate.

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Create a Division of Marijuana Enforcement within the state Department of Law and Public Safety and direct that agency to set up regulations and licensure programs for growers and distributors within a year of the bill's passage.

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Decriminalize possession of up to 50 grams immediately, limiting fines to $100 until the regulated industry gets up and running and creates a system for marijuana offenders to expunge their criminal records.

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Set up an escalating sales tax on marijuana starting at seven percent in the first year, 10 percent in the second and jumping five percent each year thereafter to a final tax rate of 25 percent.

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Prohibit growing marijuana at home and ban its use in public.

Mr. Murphy will assume the Governorship on January 16, 2018.According to Senator Sweeney, the goal is to legalize recreational marijuana within the first 100 days, which would be by April 26, 2018.We don’t know whether that goal will be accomplished, but what we do know is that we now have a Governor who will be ready, willing and eager to sign the bill into law when it arrives at his desk.​If you have a question about your rights as a medical marijuana user or questions about legal issues that may arise if recreational marijuana is legalized in New Jersey, please feel free to contact Ryan S. Malc, Esq. at 732-363-0666 or at rmalc@bathweg.com.

​I. IntroductionTo understand immigration in America today, we need to understand our historical immigration policy and our societal treatment of immigrants. The oft-cited statement that “we are a nation of immigrants” although true, implies that America has always embraced immigrants with open arms. America, however, has not been so welcoming. Each successive wave of immigrants has had to struggle to gain a place in American society. This blog explains American immigration history and offers perspective as to what is happening today.

II. BeginningsIn the early 1600’s, the first European immigrants arrived in America. They sailed from England and settled in Jamestown, Virginia and Plymouth, Massachusetts. A steady stream of immigration through 1800 ensued with most immigrants coming from England, Scotland, Germany, Holland and France. African Americans were brought to America against their will as part of the European slave trade. The lure of America was so great to Europeans that many immigrants arrived as indentured servants who worked to “buy” their freedom from their sponsors. Indentured servants were treated poorly and perceived as not worthy of freedom. Their poor treatment was based on their status and not some immutable trait like race or ethnicity. After 1800, immigration slowed dramatically until the 1840’s.

III. First Wave Of New Immigrants And Anti-Immigrant SentimentDuring the 1840’s approximately 1,000,000 Irish immigrants arrived in the United States escaping the potato famine. Practically all were Catholic. They were unskilled workers who settled in urban areas and provided inexpensive manual labor to build railroads, canals, and public projects. The “native population,” that is, the earlier arriving immigrants, feared that the Irish Catholics and other Catholic immigrants would be loyal to the Pope over the United States. Chinese immigrants also began arriving in America as an even cheaper labor source. The new immigrants were blamed for problems in urban areas like disease, crime, and welfare. They were also accused of wanting to remain separate from the “true” Americans.

In the 1850’s, spawned by this wave of immigration, Nativism gained popularity in the United States. The Nativists, who were also known as “Know Nothings,” advocated against further immigration, favored a 21 year residency requirement to be eligible for citizenships, and did not want foreign born citizens to have the right to vote. In 1882, the Chinese Exclusion Act was enacted into law and prevented all Chinese from entering the United States.

IV. Next Wave Of Immigration And Anti-Immigrant PoliciesIn the 1880’s, many immigrants arrived in the United States from Italy, Eastern Europe, Poland, Syria, and Lebanon. A significant number of Jews were among the new immigrants. The new immigrants were greeted with suspicion and prejudice. Nativists blamed immigrants for overcrowded and unsanitary conditions, poverty, and disease in the cities. They also questioned whether the immigrants wanted to assimilate into American culture. The Immigration Act of 1917 required that all immigrants over the age of 16 read at least 40 words in their native language. The Immigration Act of 1924 made it more difficult for immigrants other than Northern and Central Europeans to enter the United States. That law barred all immigration into the United States from Asia.

V. Immigration Policy In The United States TodaySince the end of World War II, the United States has used either a quota system or preferential category admission system as its immigration policy. The quota system established a defined member of spots for immigrants based on their national origin. That system has been replaced by a preferential category admission system which establishes priority factors for determining who may immigrate to the United States. The factors include family reunification, employment skills, investment capability, and persecution because of political, religious, and social status. With the number of new, documented immigrants capped at 675,000 per year, there has been an explosion of undocumented immigration into the United States mostly from Mexico, Central America, China, and India.​VI. Today’s Immigration DebateTwo attitudes prevail today in the United States regarding immigration. These two attitudes have been present since the founding of America. Pro-immigration advocates maintain that immigrants contribute to the vibrancy of the United States and are our hope for sustained greatness. Anti-immigration advocates argue that our borders have been overrun and that unchecked immigration overburdens our social welfare system, takes jobs away from lawful residents, lowers tax revenues, and increases crime. These competing attitudes and the debate that has resulted have enabled us to find an equilibrium that although imperfect, has continued to make us a nation of immigrants deeply committed to fairness. We owe that commitment to the words contained in our nation’s primordial document – The Declaration of Independence – which reads “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

​On June 23, 2017, the United States Supreme Court decided the case of Murr v. State of Wisconsin. This lawsuit involved a claim for inverse condemnation. The plaintiffs contended that certain land use regulations had reduced the value of their property.

Plaintiffs are the owners of two contiguous lots. The regulations prohibited owners of adjacent lots from selling their lots as separate building sites unless each lot contained at least one acre of developable land. Because the plaintiffs’ two lots did not each contain one acre of developable land, the plaintiffs effectively had to merge their two lots into a single lot in order to build a house. Plaintiffs, therefore, claimed the land use regulations caused them to incur an economic injury by reducing their land holdings to a single buildable lot.

For an inverse condemnation claim based on the application of a land use regulation to be viable a land owner must prove they have been deprived of all economically beneficial or productive use of their land. Alternatively, a property owner must prove the regulation interfered with their investment-backed expectations for their property. It is difficult to prove either one of those elements of adverse economic impact.

In Murr, the Supreme Court concluded that the plaintiffs had not proved their case. The basis of that decision was the Court’s conclusion that the plaintiffs’ two contiguous lots should be evaluated as a single parcel of property. Once those lots were merged, it was impossible for the property owners to establish they lost all economically beneficial or productive use of their land because they still owned a buildable and valuable lot. Plaintiffs were incapable of proving their reasonable economic expectations had been thwarted because, despite the land use regulation, they could develop their property as a home site.

Murr is likely to have an impact on regulatory based inverse condemnation claims in New Jersey. It is not uncommon for property owners to hold contiguous lots in a single name. Issues arise when government approvals are sought for one or more of those lots. This situation frequently occurs when adjacent lots are sold to a purchaser who wants to develop and resell the lots for more than one house.

If you have any questions regarding the impact of Murr v. State of Wisconsin on eminent domain, condemnation, inverse condemnation or land use and zoning regulations, please call William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com

Mr. Wolf has represented clients in condemnation and inverse condemnation cases.Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years. Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

As was tragically evident from the recent death of a young girl in a lagoon in Toms River, New Jersey, water and electricity make a deadly combination. That child died when she was electrocuted while swimming in a lagoon.

According to published reports, that swimmer came in contact with a portion of a metal boat lift. It is believed that electric current used that metal object as a pathway into the water.

According to the Electric Drowning Prevention Association, contact with an electric current on a metal object that protrudes into water can cause muscle paralysis that can lead to death by drowning. The presence of electricity in the water can also lead to the injury or death of people who attempt to rescue the drowning swimmer.

Frequently, the source of the electricity is related to a power source on a dock or a boat moored in a marina. There is, however, an alternative source that can be easily overlooked. That potential source is known as stray current.​Stray current refers to the flow of electrical current into the water, ground or metal objects. That flow of current can be caused by an imbalance in an electrical system or flaws in wiring or electrical components.

The source of stray current can be located far from an object, a swimming pool, or a body of water that appears to be the site at which a person experienced a shock. As a result, stray current as the potential source of an accident or a fatality can be easily overlooked. Thus, when an injury is caused by electrical shock, it is sometimes necessary to expand the scope of the investigation to other areas on or off the location at which the accident occurred.

William J. Wolf, Esq. has represented clients in cases involving stray current and electromagnetic fields. In each instance, Mr. Wolf was able to obtain favorable jury verdicts for his clients.

If you have any questions regarding the impact of stray current, electromagnetic fields, electrocution or other personal injuries, please call William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com.

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years. Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

The statewide debate over the legalization or decriminalization of recreational marijuana continues to advance at a rapid pace. According to recent polls conducted by New Jersey Advanced Media, upwards of 90% of its readers believe marijuana should be legalized. Despite an overwhelming majority of people in New Jersey who support the legalization of marijuana, and the recent proposal of a bill by State Senator Nicholas Scutari that would do just that, Governor Christie continues to rebuke the idea as “beyond stupidity.”

As Governor Christie's final term in office draws to an unpopular end, his opinion and disparaging comments directed at marijuana supporters have become less and less meaningful. Time will soon tell how the next administration deals with this pressing issue, but it appears that change is imminent. Democratic candidates Ambassador Phillip Murphy, Assemblyman John Wisniewski and Jim Johnson support legalization of marijuana while Senator Ray Lesniak supports decriminalization. Republican candidates Lieutenant Governor Kim Guadagno and Assemblyman Jack Ciattarelli support decriminalization.

In the meantime, however, on May 15, 2017, Senator Scutari introduced a bill that would make recreational marijuana legal in New Jersey. Senator Scutari’s proposed measure would do the following:​

Legalize individual possession for those over the age of 21 of up to one ounce of marijuana; 16 ounces of products infused with the drug in solid form; 72 ounces in liquid form and seven grams of marijuana concentrate.​

Create a Division of Marijuana Enforcement within the state Department of Law and Public Safety and direct that agency to set up regulations and licensure programs for growers and distributors within a year of the bill's passage.

Decriminalize possession of up to 50 grams immediately, limiting fines to $100 until the regulated industry gets up and running and creates a system for marijuana offenders to expunge their criminal records.

Set up an escalating sales tax on marijuana starting at seven percent in the first year, 10 percent in the second and jumping five percent each year thereafter to a final tax rate of 25 percent.

​Prohibit growing marijuana at home and ban its use in public.

The process of passing a bill is time consuming and includes legislative hearings and votes in the Senate and Assembly. If a bill legalizing marijuana is passed, Governor Christie has vowed to veto it. Nevertheless, by the time our next governor is sworn in, Senator Scutari’s bill may be waiting for his or her signature. Until then, we can all expect that the debate over the legalization of recreational marijuana will continue, energizing supporters and objectors alike.​​If you have a question about your rights as a medical marijuana user or questions about legal issues that may arise if recreational marijuana is legalized or decriminalized in New Jersey, please feel free to contactRyan S. Malc, Esq. at 732-363-0666 or at Rmalc@bathweg.com.

President Trump and the new administration in Washington have promised to hire 10,000 new Immigration and Customs Enforcement (“ICE”) agents, 5,000 new border patrol officers and 125 new immigration judges to enforce the new executive orders dealing with immigration. The increased enforcement will permit expedited deportation of many immigrants who have been in the United States for less than 2 years. In fact, many immigrants may be deported in less than 48 hours after being taken into custody. In light of this new policy, there are four things that every immigrant needs to do.

1. Make A Family Preparation Plan

a) Have the telephone number of an immigration lawyer or immigration advocacy group with you at all times. Make certain that your family members also have these telephone numbers. b) Keep important documents (passport, marriage license, birth certificate, deed to property) in a safe place that is readily accessible. c) Keep documents showing your status and years in the Unites States on your person at all times. d) Create a power of attorney in favor of someone you trust to make decisions for your children. e) Obtain a passport from the United States or your native country for you and all family members so that all of you can travel.

2. Know What To Do If The Police Or An Immigration Officer Stops You On The Street

a) If you are stopped in the street, ask if you are being detained or arrested. If you are told no, ask if you are free to leave. If you are told that you may leave, walk away calmly. If you are told that you are under arrest or being detained: You have the right to remain silent. You should exercise this right. b) Show your status documents if you have them on your person.c) Do not sign any papers.d) If you do not have valid documents to be in the United States: Remain silent; do not show false documents or lie; and do not sign any papers.

3. Know What To Do If The Police Or An Immigration Officer Comes To Your House

a) Do not open the door unless you are shown a search warrant. Ask that the warrant and all other papers be slipped under the door.b) If an officer enters your home, even with a search warrant, write down the names and badge numbers of the officers and the names, addresses and telephone numbers of anyone in your home at the time of the entry. c) Do not sign any papers.d) ​ Contact an immigration lawyer or immigration advocacy group immediately after the officers leave.

4. Know What To Do If You Are Arrested Because Of An Immigration Issue​

a) Obtain the name, badge number of the person who arrested you and the agency for whom the agent works (ICE, FBI, local police). b) Remain silent and advise the agent that you are exercising the right to remain silent.c) Do not sign any papers.d) ​Immediately ask to contact an immigration lawyer or a family member who can contact a lawyer on your behalf. e) Contact the consulate of your native county. The consulate will help you formulate a plan to protect you and your family. f) Advise whomever is holding you in custody that you want to apply for bail.

The best way to protect your rights is to know your rights. Have a plan and a strategy to exercise those rights. If you have a question about immigration and your rights, please contact Michael M. DiCicco, a partner at Bathgate, Wegener & Wolf, P.C. ​

The use of marijuana, whether for medicinal or recreational purposes, is a hotly debated issue in our country. Like many divisive issues, strong opinions exist on both sides of the debate. There are currently twenty-eight (28) states, plus the District of Columbia, that have passed laws permitting the use of medical marijuana, subject to various limitations. Eight states, plus the District of Columbia, have passed laws legalizing the use of recreational marijuana. ​In 2010, New Jersey passed into law the New Jersey Compassionate Use Medical Marijuana Act. There are over 11,000 New Jersey residents who have been issued ID cards permitting them to purchase medical marijuana at one of the State’s five (5) dispensaries. New Jersey’s medical marijuana law, like all other similar laws around the country that legalize the use of medical or recreational marijuana, is at odds with Federal Law that prohibits the use of marijuana. Recently, the conflicts between State and Federal Laws relating to the use of marijuana have met head-on in New Jersey Federal Courts, mainly in the context of employment law.

For example, on February 22, 2017, the United States District Court in New Jersey granted a motion to dismiss by the defendant employer, Robert Half Corporation. The plaintiff, Thomas Barrett, was a New Jersey medical marijuana ID holder and an employee of Robert Half Corporation. He was terminated from his employment after testing positive for marijuana. Although Mr. Barrett gave notice to his employer that he was a participant in the medical marijuana program due to severe back pain from an auto accident, the Federal District Court judge ruled that the notice did not constitute a request for accommodation of a disability. For that reason, Mr. Barrett’s case was dismissed.

By way of further example, Jason Wild was diagnosed with cancer. To help deal with the effects of cancer, his doctors prescribed him medical marijuana. He worked during the day at a funeral home, and smoked medical marijuana at night to help ease his pain. His employer, Carriage Services, learned about Mr. Wild’s medical marijuana use when he disclosed it to hospital personnel after he was involved in a car accident. Upon receiving this information, the employer fired Mr. Wild.

Mr. Wild filed a lawsuit against Carriage Services alleging violations of New Jersey’s Law Against Discrimination. He also asserted a claim for Defamation arising out of his bosses’ alleged statements to other funeral directors warning them that Mr. Wild is a drug addict. On February 28, 2017, Carriage Services filed a motion to dismiss Mr. Wild’s complaint. In support of its motion, Carriage Services advanced the following arguments: (1) because Mr. Wild never requested an accommodation related to his medical marijuana use, he does not have a valid claim pursuant to New Jersey’s Law Against Discrimination, and (2) the New Jersey Compassionate Use Medical Marijuana Act is pre-empted by Federal Law.

As of the date of this article, the Federal Court has not yet ruled on Carriage Service’s motion to dismiss. Undoubtedly, both objectors and advocates of medical marijuana will be keeping a close eye on the outcome of Mr. Wild’s case. Interestingly, there is legislation pending in the New Jersey State Senate and Assembly that would essentially make it illegal for an employer to take adverse employment action against an employee who is a registered medical marijuana ID holder and tests positive for marijuana use. The bill, S-2161, has not yet received an up or down vote. Unless and until this legislation is passed or there is a change in Federal Law, New Jersey medical marijuana users will have to smoke at their own risk.​

To discuss the interplay between State and Federal Laws relating to the use of marijuana, or any other legal issues, feel free to contact Ryan S. Malc, Esq. at 732-363-0666 or at Rmalc@bathweg.com.